Does the Constitution follow the Flag?

By Kevin Fung

Sitting in the tropical Caribbean, east of the Dominican Republic and exactly 1,016 miles from Miami, Puerto Rico resembles the lone star in its flag. The island, cloaked in idyllic rainforests and beaches, appears serene and untainted―an oasis in a sea of blue.

While Puerto Rico’s verdant beauty often captivates visitors on their excursions to the island, it also conceals a lingering political tension among the island’s residents. This tension is a product of Puerto Rico’s turbulent past, and has given rise to the debate over Puerto Rico’s official legal status. While Puerto Rico’s New Progressive Party desires statehood for the island, the Popular Democratic Party favors remaining a commonwealth.

In February, New Mexico’s Democratic Senator Martin Heinrich proposed a bill to Congress that would present Puerto Ricans with an opportunity to vote for statehood or commonwealth status. Heinrich’s bill is the first to be submitted in line with a 2.5 million dollar federal budget allocation, through which President Obama aims to resolve Puerto Rico’s status issue. If this bill were to pass, it would authorize the first federally endorsed plebiscite in Puerto Rico’s history—there have been four other non-federally endorsed plebiscites since the island’s annexation.

The Capital Building in Puerto Rico, home of the island’s legislative body. (Courtesy of Creative Commons)
The Capital Building in Puerto Rico, home of the island’s legislative body. (Courtesy of Creative Commons)

Heinrich’s bill currently has bipartisan backing that includes Florida Republican Senator Marco Rubio and House Majority Leader Eric Cantor. With such diverse sponsorship, the bill has the potential to yield a convincing solution. In assessing the fairest outcome, however, it is important to first understand Puerto Rico’s political history.

Ceded to the United States in 1898 through the Treaty of Paris, Puerto Rico was entirely Spanish-speaking and undeveloped. From the beginning, Puerto Rico posed as much of a unique resource as it did an unfamiliar challenge to the US constitutional system.

In a series of court cases known as the Insular Cases between 1901 and 1905, the Supreme Court attempted to determine the island’s fate. At the heart of the cases was the question: “Does the Constitution follow the flag?” Columbia Law Professor Christina Duffy Ponsa explained, “If a place belongs to the U.S., does the Constitution apply there automatically—all the rights and protections it guarantees, etc.?”

By eventually deeming Puerto Rico “unincorporated,” the Insular Cases held that although Puerto Rico fell under US jurisdiction, its inhabitants did not automatically retain full constitutional rights. As Professor Ponsa said, the Supreme Court’s decision meant that “just because [Puerto Ricans] hoist the flag does not mean that all these dark people are suddenly entitled to equal protection, jury trials, and [everything else].” Puerto Rico’s age of ambiguous ownership had begun.

The territory can be compared to the early British colonies of the 1700’s. According to Yale Law Professor Julian Alvarez, “under any acceptable International Law definition of the term, Puerto Rico is a colony, but the U.S. prefers to use the word territory.” The “Insular Case of Downes v. Bidwell in 1901 deemed this status constitutional,” said Alvarez, leaving Puerto Ricans with initially little say in their management―distinctly reminiscent of America’s forefathers.

Port view of Puerto Rico. (Courtesy of Creative Commons)
Port view of Puerto Rico. (Courtesy of Creative Commons)

While the US government granted Puerto Rico a popularly elected House of Delegates through the 1900 Foraker Act, a unanimous 1914 vote for independence by the House was rejected by Congress as “unconstitutional.” Congress held the power to veto any law produced by Puerto Rican legislature. While Puerto Ricans collectively wanted independence, Congress had other intentions.

Congressional interventions have affected Puerto Ricans in numerous other ways. When Congress granted citizenship to Puerto Ricans through the Jones Act in 1917 during World War I―a move entirely opposed by the Puerto Rican House of Delegates―Puerto Ricans could legally be drafted to serve in the US armed forces. Yet the act also prohibited Puerto Ricans from voting for the US President in general elections, denied them a vote in the US House of Representatives, and gave Congress the power to revoke their US citizenship.

As a result of this equivocal government, many islanders continue to remain unsure of their civic status. The inevitable question of identity arises: “Am I Puerto Rican or am I American?” This uncertainty reflects a similar misunderstanding in the mainland U.S., where Puerto Rico is often understood to be an overseas vacation destination rather than a contributing member of the country.

In an online survey of fifty Yale students, 79 percent claimed to feel “unsure” in their knowledge of Puerto Rico’s political status. Unsurprisingly, many recognized Puerto Rico as a popular tourist destination, using terms such as “beaches, tropical, and vacation” to describe their impression of the island. While this perception is not necessarily negative, it fails to acknowledge Puerto Rico’s true standing in America; over 32 percent of these students were unsure whether Puerto Rico was actually a part of the United States, and 67 percent believed Puerto Ricans were not legitimate US citizens. Concurrently, another common term among those surveyed to describe Puerto Rico was “immigrant.”

Given that Puerto Rico enters its own athletic teams in the Olympics, an impression of sovereignty is understandable. Should a territory with a markedly diverse background but a shared citizenship, duty, and faith in the American dream, be made a state? If history repeats itself, a plebiscite bill such as Senator Heinrich’s may ultimately end up raising more questions than answers about the status of Puerto Rico.

Kevin Fung ’17 is in Timothy Dwight College. Contact him at